Citation Nr: 1518940
Decision Date: 05/04/15 Archive Date: 05/13/15
DOCKET NO. 13-18 428A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in New Orleans, Louisiana
THE ISSUES
1. Entitlement to service connection for a right hip disability, to include residuals of a total joint replacement.
2. Entitlement to service connection for a left lower extremity disorder, to include the knees and fibula, to include as secondary to service-connected ankle disability.
3. Entitlement to service connection for residuals of an injury to the collarbone.
4. Entitlement to service connection for residuals of an injury to the chest, to include alleged injury to the sternum.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
J. T. Sprague, Counsel
INTRODUCTION
The Veteran had active service in the United States Army from March 1976 to March 1979.
This matter comes before the Board of Veterans' Appeals (Board) from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana.
The issues of entitlement to service connection for collarbone, chest, and left lower extremity disabilities are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).
FINDING OF FACT
The Veteran underwent a right hip replacement in 2007 as due to progressive necrosis in the joint; the medical evidence indicates that this disorder, the only disability diagnosed in the joint prior to replacement (despite complaints of pain since service), had origins many years after service separation.
CONCLUSION OF LAW
The criteria for entitlement to service connection for a right hip disability have not been met. 38 U.S.C.A. §§ 1131, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304(a) (2014).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Veterans Claims Assistance Act of 2000 (VCAA)
The VCAA provisions include an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits, and they redefine the obligations of VA with respect to the duty to assist the Veteran with a claim. In letters of record, the Veteran was informed of how VA determines disability ratings and establishes effective date of awards for service-connected benefits, as required by judicial precedent. See Dingess v. Nicholson, 19 Vet. App. 473 (2006).
It is pertinent to note that the Veteran is represented by The America Legion, and that organization is presumed to have knowledge of what is necessary to substantiate a claim for service connection. Neither the Veteran nor his representative have pled prejudicial error with respect to the content or timing of VCAA notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009).
Regarding VA's duty to assist the Veteran in obtaining evidence needed to substantiate his claim, the Board finds that all necessary assistance has been provided in this case. The evidence includes service treatment records and post-service pertinent medical records, including VA examination reports. There is no indication of any additional relevant evidence that has not been obtained. With respect to the clinical examinations, the Board finds that the Veteran was provided thorough VA examinations which, when taken together, fully addressed the Veteran's allegations and symptoms, and they are adequate for rating purposes. As such, there is no duty to provide another examination or a medical opinion. See 38 C.F.R. §§ 3.326, 3.327 (2014).
Legal Criteria-Service Connection (General)
Applicable law provides that service connection will be granted if it is shown that the Veteran experiences a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d).
Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998) (citing Cuevas v. Principi, 3 Vet. App. 542, 548 (1992)). Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).
Certain disorders, listed as "chronic" in 38 C.F.R. § 3.309(a) and 38 C.F.R. § 3.303(b), are capable of service connection based on a continuity of symptomatology without respect to an established causal nexus to service. See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran's right rip disablement, categorized as necrosis in the bone leading to joint replacement, is not among those disorders deemed "chronic" for regulatory purposes, and thus, in order for service connection to be established, a nexus to service must be shown.
Analysis
The Veteran was involved in a motor vehicle accident during his active service, and he maintains that he felt discomfort in his right hip since that time and that his current joint replacement, performed in 2007, was resultant from an injury incurred in active duty.
In March 1978, the Veteran did experience an automobile accident while serving at Ft. Hood, Texas. Following the accident, he was brought to the emergency department at that facility. He was treated for multiple lacerations to both legs, the right arm, scalp, cheek, chin, and left ear "without nerve or artery involvement."
The Veteran was examined by VA in November 2012, and radiographic studies were conducted at this time. It was determined that the right hip joint replacement was still intact and was unremarkable. No left hip pathology was determined to exist. With respect to the etiology of the right hip disability, it was noted that joint replacement had been performed as due to the Veteran experiencing "aseptic or avascular necrosis, or osteonecrosis." Osteonecrosis was defined as avascular necrosis of the bone, and the examiner researched medical literature to determine the nature of such disability. In so doing, it was described that "the process is often progressive, resulting in joint destruction within three to five years." As this was the case, the examiner noted that the Veteran's complaints were of pain during service and for many years thereafter; however, if the Veteran had experienced the sole diagnosed hip disability (i.e. the avascular necrosis in the right hip) in the 1970s, he would have required hip replacement much sooner than in 2007 (approximately thirty years subsequent to service discharge). Simply, having cited medical literature, the examiner suggested that the aggressively progressive nature of the necrosis is so quick in its operation that the joint destruction would have occurred three to five years following separation from service had it, in fact, been present at that time.
This opinion is well-rationalized, in that it utilizes a citation to medical literature to back its conclusion with respect to etiology of the right hip disorder. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). By contrast, the evidence supporting the Veteran comes from his own testimony with respect to his symptoms. In this regard, it is conceded that the Veteran is competent to note his symptoms of pain, as these are manifestations which are perceivable through his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). He is not, however, competent to make an assessment as to the nature and etiology of necrosis in the bone of his right hip, as such an opinion is "complex" in nature and requires specialized knowledge and training to describe. Id. In that respect, the Board notes that the necrosis of the right hip, as causative of the need for a total right hip replacement, is the only diagnosed disorder attributable to the right hip and it has, as discussed, been determined to not have causal origins in active service. The Veteran's symptoms of pain, even if present since service, are thus not assignable to this disorder, even in part, until the years proximate to his hip replacement in 2007 (three to five years prior to joint destruction as described in cited medical literature). Thus, prior to at earliest 2002, the Veteran's pain in the hip was representative of a symptom without an underlying disability. Pain alone is not something for which service connection can be granted, and thus, even if present from service until the years prior to the hip replacement, cannot form the basis of a current disability for the purposes of establishing entitlement to service connection. See Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001).
Essentially, the evidence indicates that the Veteran had a bodily injury in 1978 following a car accident. He reports sporadic pain in the right hip since that time; however, no attributable pathology was located in the right hip until many years after service, and the nature of that pathology, described as osteonecrosis (or avascular/aseptic necrosis), has been shown, via appropriate references to medical literature, to not have origins in active service. As this is the case, the probative evidence does not support the Veteran's claim, and it must be denied.
In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran's claim. 38 U.S.C.A. § 5107(b) (West 2014); see also Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).
ORDER
Entitlement to service connection for a right hip disability, to include total joint replacement, is denied.
REMAND
As noted in the decision above, the Veteran did have an automobile accident in 1978 which necessitated some treatment for acute abrasions. The Veteran has maintained that he experienced pain in his collarbone and in his chest as a result of this trauma. Further, he contends that he experienced pain in his left lower extremity as resultant from the vehicle trauma or, alternatively, that his service-connected ankle disablement caused, or aggravated beyond the natural progression of the disease process, a current left lower extremity/left knee condition.
That the Veteran experienced an in-service trauma is not disputed, and given the treatment received at that time, it is evident that there was involvement in many places on his body. With respect to current collarbone and chest disablement, the record does not reflect current diagnoses; however, the Veteran has not been afforded an examination to address as to if current disablement exists in these areas. As the Veteran is competent to report pain, and as he has asserted that he has experienced pain in the collarbone and chest since his 1978 accident, there is evidence of current symptoms of disablement in addition to a documented in-service injury. Accordingly, VA's jurisprudential duty to afford a VA examination addressing the current nature and etiology of any present collarbone and chest disorder is triggered. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). These matters are remanded so that such an examination can be afforded.
With respect to the left lower extremity, it is noted that the Veteran did have an examination in December 2012. Radiographic studies confirmed the presence of degenerative changes in the left knee, and an earlier examination, dated in May 2009, noted that there were healed fracture residuals of the left fibula. With respect to etiology, the 2012 opinion addressed direct service connection; however, there is no opinion afforded with respect to the proffered secondary theory of entitlement. Indeed, the VA physician noted that there was arthritis present in the bilateral knees, and as such, he offered that it would not likely stem from specific trauma to the left lower extremity. No opinion was offered as to if right ankle degenerative arthritis, which is service-connected, caused or aggravated the left lower extremity condition (e.g. by causing gait abnormality or overuse, etc.). When VA undertakes the duty to offer an examination, it has a responsibility to ensure that the returned opinion is adequate to address the contended issue. In the current case, the most recent VA opinion appears adequate with respect to contended direct service connection; however, by not offering an opinion with respect to secondary service connection, it is incomplete in its analysis. Accordingly, the Board must consider the opinion inadequate, and a new, comprehensive VA orthopedic opinion must be obtained. See Nieves-Rodriguez at 295.
It is additionally noted that the Veteran has stated that he no longer works and that he receives disability benefits from the State of Louisiana. Implicit in this report is that he is paid workers' compensation benefits. With respect to disability payments associated with a work injury, following the obtainment of required waivers, the State of Louisiana should be queried with respect to any disability payments paid to the Veteran as part and parcel of a workers' compensation claim. Any and all medical records associated with such claims, if available, should be copied and associated with the claims file prior to the conducting of the examinations ordered by this remand.
Accordingly, the case is REMANDED for the following action:
1. Contact the appropriate agency in the State of Louisiana with respect to the administration of disability benefits (namely, benefits administered for claims for workers' compensation). Obtain all appropriate waivers and releases, and, should the Veteran be in receipt of state benefits for a work-related or other injury, obtain copies of documentation associated with such payments. Should no such records exist, so annotate the file.
2. Schedule the Veteran for a comprehensive VA orthopedic examination to address the nature and etiology of any current collarbone, chest, and left lower extremity/knee disabilities. In this regard, it is asked as to if it is at least as likely as not (50 percent probability or greater) that the Veteran experiences such disability, and if so, if it is at least as likely as not that the disability had causal origins with any event of active service, to include his 1978 motor vehicle accident.
The Veteran's reports of pain since service should be specifically referenced. With respect to the claimed lower extremity disorder, it is also asked as to if it is at least as likely as not that any disablement in the left lower extremity, to include degenerative arthritis and fibial fracture residuals, was caused, or aggravated beyond the natural course of the disease process, by service-connected right ankle arthritis. All conclusions in the narrative portion of the examination report should be fully supported by associated rationales.
3. Following the above-directed development, re-adjudicate the Veteran's claims. Should the claims remain denied, issue an appropriate supplemental statement of the case and forward the claims to the Board for adjudication.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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MATTHEW D. TENNER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs